A person charged with possessing or making child pornography can raise what is known as a “private use exception” as a defence. The limits of this defence were recently considered by the Supreme Court of Canada in the case of R. v. Barabash.
In that case, two girls,age 14, were runaways from a treatment centre. They stayed with the accued B, age 60, whereas the other accused R, age 41, was a regular visitor. The girls were involved in sexual activity, which was depicted on video and in photographs, with each other and with R. At the time the videos and photographs were made, 14-years-olds could legally consent to sexual acts with adults. Both B and R were charges with one count of possessing child pornography, contrary to section 163.1(2) of the Criminal Code. B was also charges with one count of possessing child pornography, contrary to section 163.1(4). The trial judge found that all of the elements were established however, the accused raised in defence the private use exception. the judge concluded that the Crown had failed to disprove the exception beyond a reasonable doubt. The Court of Appeal allowed the appeals, substituted guilty verdicts and remitted the cases for sentencing. The Supreme Court of Canada allowed the appeal, but rather than restoring the acquittal, ordered a new trial.
The Supreme Court held that there are three elements to the defence: 1) the sexual activity depicted is lawful; 2) the sexual activity is consensual and 3) the recordings are held exclusively for private use. If the seemingly consensual relationship is actually exploitative then the sexual activity is not lawful and the defence will not succeed. In determining whether or not a relationship is exploitative the courts will look at a number of factors, including: a) the age of the young person; b) the age difference between the person and the young person; c) the evolution of the relationship; and d) the degree of control or influence by the person over the young person.
Although the Supreme Court of Canada has placed limits on the defence, the private use exception continues to operate and could result in an acquittal in the right circumstances.